THE HISTORY OF AUSTRALIAN DISABILITY LAW

Summary

• Disability was once understood through a medical lens, whereby people were treated as passive recipients of uniform care.

• A shift to the ‘social model’ of disability in the 1970s and 80s understood disability as a social construct.

• Legislative reform recognised people with disability as rights bearers.

• The Commonwealth State Disability Agreement is established in 1991.

• The National Disability Agreement replaces its predecessor in 2009, amidst growing sentiment for a national framework for the provision of disability support.

• The Australian Government commits to considering the development of the National Disability Insurance Scheme following the Australia 2020 Summit in April 2009.

 
Historically, people with disability were not afforded the same rights. Disability was viewed through a medical lens, which hyper-fixated on individual deficit and viewed disability as something to be solved or curved.[1] In this context, people with disabilities were treated as passive recipients of welfare and care. This approach, now known as the ‘deficit model’ of disability support, left people segregated, socially isolated, vulnerable to abuse and with substantial economic and social disadvantage, creating a breeding ground for human rights violations.[2] These hardships were amplified by social stigma surrounding disability, which was itself fuelled by the systems that presented disability as something to be pitied, fixed, or eliminated.

The social model of disability was the result of a paradigm shift in the 1970s and 80s, during which disability rights activists began to conceptualise impairments as an inherent aspect of the human condition.[3] Disability in this context is socially constructed – the result of the interaction between people living with impairments and an environment filled with physical, attitudinal, and social barriers.[4] This new conception of disability recognised people with disability as rights bearers and was the driving force of legislative reform in Australia. Two major reforms during this time include the Disability Services Act 1986 (Cth), which introduced a new framework for funding and the provision of disability support services, with a focus on community-based support, and the Disability Discrimination Act 1992 (Cth), which created legal protection against discrimination and exclusion of people with disabilities.[5]

Following the implementation of the Disability Services Act 1986 (Cth), there existed ‘considerable overlap and confusion’ in the funding arrangements for disability services at the different levels of government.[6] This imposed barriers to meeting the objectives of the Act. The Commonwealth State Disability Agreement (CSDA) introduced in 1991 aimed at defining the roles and responsibilities of the Commonwealth, State and Territory governments in the provision of disability support.[7] The agreement arguably created the first opportunity for a joint and cooperative approach to policy, planning and funding for disability services in the country. There were nonetheless major shortcomings of the CSDA noted by the 1998 review,[8] some of which included:

• Failing to establish practical provisions for resourcing jointly owned intergovernmental management capacity to develop the disability service system.

• Doing little to provide for the issues of coordination that arose between the separate areas of responsibility imposed on each government.

• Lack of strategic planning to meet growth in demand for services.

• Doing little to target the needs of primary carers.

• Inadequate attention to grievance and complaint procedures.

  Given these limitations, many users did not see the CSDA as having led to improvements in the provision of disability support. In 2007, a Senate inquiry into the funding and operation of the CSDA recommended the development of a national strategy and the review of funding arrangements.[9] During the 2007 federal election campaign, the Labor Party committed to negotiate such a strategy, which would target ‘how to fund, finance and deliver disability services in the future’.[10] This is followed by the ratification of the UN Convention on the Rights of Persons with Disabilities in May of 2008, which sparked further push for legislative reform.[11] The National Disability Agreement (NDA) replaced the CSDA on the 1st January 2009, which gave the Federal government the responsibility of providing employment services for people with a disability and for funding for states and territories to assist with meeting the agreement’s objectives.[12] State and Territory governments were responsible for the coordination of specialist disability services including respite care, community access and advocacy.[13] Nonetheless, the Productivity Commission highlighted the need to facilitated cooperation, enhance accountability and further clarify roles and responsibilities in the provision of disability support services.[14] The sentiment for a more efficient national framework among advocates continued. Following the Australia 2020 Summit in April 2009, the Australian Government formally committed to considering the development of a National Disability Insurance Scheme, aimed at targeting identified gaps in the existing system.[15]

[1] "Social Model of Disability," People with Disability Australia, 2022, https://pwd.org.au/resources/models-of-disability/.

[2] Ibid.

[3] Ibid.

[4] Ibid.

[5] Luke Buckmaster and Shannon Clark, The National Disability Insurance Scheme: a chronology, Research Paper Series, 2018-19, Parliamentary Library, (Canberra, 2018), https://www.aph.gov.au/About_Parliament/Parliamentary_Departments/Parliamentary_Library/pubs/rp/rp1819/Chronologies/NDIS#:~:text=The%20National%20Disability%20Agreement%20replaces,operation%20on%201%20January%202009.

[6] Standing Committee on Community Affairs, Funding and Operation of the Commonwealth State/Territory Disability Agreement, (Canberra, 2007), 5, https://www.aph.gov.au/parliamentary_business/committees/senate/community_affairs/completed_inquiries/2004-07/cstda/report/index.

[7] Ibid.

[8] Ibid, 8.

[9] Ibid.

[10] Buckmaster and Clark, The National Disability Insurance Scheme: a chronology.

[11] Ibid.

[12] Ibid.

[13] Ibid.

[14] Australian Government Productivity Commission, Review of the National Disability Agreement, (Canberra, 2019), https://www.pc.gov.au/inquiries/completed/disability-agreement#report.

[15] Buckmaster and Clark, The National Disability Insurance Scheme: a chronology.